Johnson Controls, Inc.

National Labor Relations Board - Administrative Judge Opinions

Feb 16, 2016

10-CA-151843 (N.L.R.B. Feb. 16, 2016)

JD−14−16
Florence, SC
UNITED STATES OF AMERICA
BEFORE THE NATIONAL LABOR RELATIONS BOARD
DIVISION OF JUDGES
JOHNSON CONTROLS, INC.
Respondent
and CASE 10-CA-151843
INTERNATIONAL UNION, UNITED
AUTOMOBILE, AEROSPACE AND
AGRICULTURAL IMPLEMENT WORKERS
OF AMERICA, AFL-CIO, AND ITS
AFFILIATED LOCAL UNION NO. 3066
Charging Party
and
BRENDA LYNCH and ANNA MARIE GRANT
Intervenors
Scott C. Thompson, Esq., Jordan Wolfe, Esq.,
and John Evans, Esq., for the General Counsel.
Shira T. Roza, Esq., of Detroit, MI, for the
Charging Party.
Mark M. Stubley, Esq. and H. Ellis Fisher, Esq.
(Ogletree Deakins Nash Smoak), of Greenville, SC,
for the Respondent.
DECISION
Statement of the Case
KELTNER W. LOCKE, Administrative Law Judge. During the term of a
collective-bargaining agreement, and in a context free of unfair labor practices, the
Respondent received a disaffection petition signed by more than half of the bargaining unit
employees. Even though some of the petition signers later signed union authorization cards,
their testimony established that they remained opposed to union representation. After the
contract expired, the Respondent lawfully withdrew recognition because the Union no longer
enjoyed majority support.
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2
PROCEDURAL HISTORY
This case began on May 8, 2015, when the Charging Party, International Union,
United Automobile, Aerospace and Agricultural Implement Workers of America, AFL-CIO
and its affiliated Local Union No. 366 (collectively referred to herein as the Union), filed an 5
unfair labor practice charge against the Respondent, Johnson Controls, Inc., with Region 10 of
the National Labor Relations Board. The Region docketed the charge as Case
10-CA-151843 and began an investigation.
On August 31, 2015, the Regional Director for Region 10, acting pursuant to authority 10
delegated by the Board's General Counsel, issued a Complaint and Notice of Hearing in this
matter. Respondent filed a timely Answer.
On November 16, 2015, a hearing opened before me in Florence, South Carolina. At
the hearing, I granted the petition of two of Respondent’s employees, Brenda Lynch and Anna 15
Marie Grant, to intervene.
The parties called witnesses and introduced evidence on November 16, 17, and 18,
2015. All of the witnesses testified in person at the hearing, as is customary in Board
proceedings. Respondent also sought to call, by videoconference, a witness who was on 20
active military duty and therefore unable to come to the courtroom. However, technical
problems frustrated this attempt.
After the Respondent rested, I adjourned the hearing until January 19, 2016, when it
would resume by telephone so that the attorneys could present oral argument. During this 25
recess, the Respondent would have another opportunity to call the unavailable witness by
videoconference which counsel, the court reporter and I could "attend" using our individual
computers.
During an off-the-record conference call with all counsel on December 28, 2015, I
directed that the hearing would resume on January 13, 2016, by videoconference so that 30
Respondent could call and examine the previously unavailable witness. At this point, the
General Counsel objected to the videoconference on the basis that the witness no longer
would be on active military duty on January 13, 2016, and therefore would be available to
testify in person.
35
The Respondent stated that the testimony of this witness largely would be
corroborative and estimated it would take about 15 minutes. Requiring counsel and the court
reporter to return to Florence for one-quarter hour of testimony would have entailed costs
which, I concluded, would have outweighed the potential benefit of seeing the witness
face-to-face rather than on a computer screen. Therefore, I overruled the objection.40
On January 13, 2016, the hearing resumed by videoconference to take the testimony of
the one witness. Subsequently, the Respondent provided a DVD recording of the testimony,
which I have received into the record and reviewed.
45
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On January 19, 2016, the hearing resumed by telephone conference call. After all
parties presented oral argument, the hearing closed.
ADMITTED ALLEGATIONS
5
Based on the admissions in Respondent's answer, I find that the General Counsel has
proven the allegations in complaint paragraphs 1, 2, 3, 4, 5(a), 5(b), 7, and 9. Additionally,
Respondent's answer admits some of the allegations raised in complaint paragraphs 8(a) and
8(b).
10
More specifically, I find that the Charging Party filed and served the unfair labor
practice charge as alleged. Further, I find that the Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the National Labor Relations
Act (the Act), and that it is appropriate for the Board to assert jurisdiction.
15
Further, I find that at all material times, the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of America, AFL-CIO and its affiliate Local
Union No. 3066 have been labor organizations within the meaning of Section 2(5) of the Act.
Moreover, I find that the following employees of Respondent (the Unit) constitute a 20
unit appropriate for the purposes of collective bargaining within the meaning of the Section
9(b) of the Act:
All Production and Maintenance employees at its facility located at 3046 Bill
Crisp Road, Florence, South Carolina for the purposes of collective bargaining 25
in respect to rates of pay, wages, hours of employment or other conditions of
employment covered by this Agreement. Whenever used in the Agreement, the
word "employee" shall mean any person employed in the unit as defined by the
National Labor Relations Board, Case No. ll-RC-6736 in the Certification of
Representative, but excluding all other employees such as but not limited to 30
Supervisors, Professional Employees, Guards, Office Employees, employees
whose duties are of a confidential nature, and any excluded employee as
defined in the Labor Management Relations Acts of 1947, as amended
The Respondent's answer admits that from August 18, 2010, to May 7, 2015, the 35
Union was the designated bargaining representative of employees in the Unit and their
exclusive representative pursuant to Section 9(a) of the Act. I so find. The Respondent
denies that the Union remained the exclusive representative after May 7, 2015. That issue
will be discussed below.
40
The Respondent's answer also admits, and I find, that on April 22, 2015, the Union
requested to engage in bargaining for a successor collective-bargaining agreement. The
Respondent further admits, and I find, that Respondent withdrew recognition from the Union
on May 8, 2015.
45
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4
Legal Principles
Labor law extends to the workplace some of the same principles which guide other
human interactions, but tailors and adapts them to the unique relationships of employer, union
and employee. One such principle underlies the caselaw relevant here.5
Typically, once someone's status as representative or agent has been established,
unless there is some new circumstance casting doubt on that authority, he does not have to
keep proving it over and over again. For example, a judge ordinarily does not keep asking a
lawyer whether she really is this particular client's attorney.10
In labor law, this general sense of what is appropriate and helpful, and what is not,
leads to very important and specific rules which further the Act's purpose, "removing certain
recognized sources of industrial strife and unrest, by encouraging practices fundamental to
the friendly adjustment of industrial disputes. . .and by restoring equality of bargaining power 15
between employers and employees." 29 U.S.C. Section 151 (emphasis added). In other
words, the rules further the stability of collective bargaining relationships and thereby
promote the flow of commerce.
One of these rules concerns when an employer may withdraw recognition from an 20
incumbent union representing a bargaining unit of its employees. In Levitz Furniture Co. of
the Pacific, 333 NLRB 717 (2001), the Board overruled a previous line of cases and
established the principle applicable here:
[A]n employer may unilaterally withdraw recognition from an incumbent 25
union only where the union has actually lost the support of the majority of the
bargaining unit employees, and we overrule Celanese and its progeny insofar
as they permit withdrawal on the basis of good-faith doubt. Under our new
standard, an employer can defeat a postwithdrawal refusal to bargain allegation
if it shows, as a defense, the union's actual loss of majority status.30
The Board's decision to overrule Celanese Corp., 95 NLRB 664 (1951), meant that an
employer no longer could justify its decision to withdraw recognition from a union by
producing evidence which only proved it had bonafide reasons to doubt the union's continuing
majority status. The Levitz decision, which imposed the more stringent "actual proof" 35
standard, furthered the purposes of the Act because an ongoing collective-bargaining
relationship constitutes one of the "practices fundamental to the friendly adjustment of
industrial disputes" which Congress intended to encourage. If a mere uncertainty about a
union's majority status sufficed to end a collective-bargaining relationship, then a significant
part of the statutory framework would be built of straw rather than brick. In Levitz the Board 40
stated:
We find no basis in either the language or the policies of the Act to warrant
withdrawing recognition from a union that has not actually lost majority
support. Indeed, we find that allowing withdrawal of recognition from unions 45
that enjoy majority support undermines the Act's policies of both ensuring
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employee free choice and promoting stability in bargaining relationships.
333 NLRB at 723. Under the policy announced in Levitz, an employer itching with doubt
about whether its employees supported the union can relieve that uncertainty by requesting
the Board to conduct a secret ballot "RM" election. Thus, in Levitz, the Board further held:5
While adopting a more stringent standard for withdrawals of recognition, we
find it appropriate to adopt a different, more lenient standard for obtaining RM
elections. . .we shall allow employers to obtain RM elections by demonstrating
reasonable good-faith uncertainty as to incumbent unions' continued majority 10
status.
Id. The privacy of the voting booth and the Board's neutrality make such a Board-conducted
election the gold standard for determining employee sentiment. However, an employer may
withdraw recognition from a union based on other evidence if that evidence actually proves 15
the loss of majority support. In Levitz, the Board stressed that an employer relying on such
evidence bears the risk should it turn out to be insufficient:
An employer with objective evidence that the union has lost majority support -
for example, a petition signed by a majority of the employees in the bargaining 20
unit - withdraws recognition at its peril.
333 NLRB at 726.
However, even when an employer has enough evidence to prove that the union has 25
lost its majority support, it is not always free to withdraw recognition. For example, a
union's majority status may not be questioned during the life of a collective-bargaining
agreement, up to 3 years. Auciello Iron Works v. NLRB, 517 U.S. 781, 786 (1996).
If an employer, during the term of such a collective-bargaining agreement, receives 30
proof that a majority of bargaining unit employees no longer supports the union, it may
announce its intention to withdraw recognition after expiration of the contract. However, it
must continue to recognize the union while the contract is in effect.
In determining whether an employer lawfully withdrew recognition, the Board 35
considers whether a majority of employees supported the union at the time of withdrawal.
Even though the employer may have announced its intent to withdraw recognition months
earlier, the actual withdrawal of recognition does not occur until after the agreement has
expired. The extent of employee support for the union at this point, when the withdrawal of
recognition becomes effective, determines whether the withdrawal was lawful.40
In Parkwood Developmental Center, 347 NLRB 974 (2006), the employer and the
union had entered into a collective-bargaining agreement which expired on March 8, 2003.
Three months earlier, during the contract's term, the employer announced that it had received
proof that a majority of bargaining unit employees no longer supported the union, and that it 45
would cease to recognize the union after the contract's expiration. During the 3-month period
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between the employer's announcement and the contract expiration date, the union asked
employees to sign a petition authorizing the union to act as their bargaining representative.
The signatures on this petition established that a majority of unit employees did support the
union at the time the employer withdrew recognition, making that withdrawal unlawful. The
Board rejected the employer's argument that the relevant point was in December rather than in 5
March when the contract expired:
In its exceptions, the Respondent contends that it actually withdrew
recognition on December 2, when the only evidence before it pointed to a loss
of majority status, and that it was entitled to withhold recognition thereafter 10
pursuant to the "anticipatory withdrawal of recognition" line of cases. See, e.g.,
Abbey Medical, 264 NLRB 969 (1982), enfd. mem. 709 F.2d 1514 (9th Cir.
1983); Burger Pits, 273 NLRB 1001 (1984), enfd. sub nom. HERE v. NLRB,
785 F.2d 796 (9th Cir. 1986). In essence, the Respondent argues that, having
announced on December 2 that it was withdrawing recognition, it was entitled 15
to rely on the evidence existing at that time and to ignore any contradictory
evidence that might be presented later. There is no merit in this contention.
347 NLRB at 975. This principle, which results in the union having until the contract expires
to build up its support, figures in the present case.20
Relevant Facts
The Respondent has admitted that it had recognized the Union as the exclusive
bargaining representative of employees in a unit appropriate for collective-bargaining. More 25
specifically, it has admitted that, during the period August 18, 2010, through May 7, 2015, the
Union was the designated exclusive representative of employees in that unit. Respondent's
answer also admits that it "withdrew recognition on May 8, 2015, after the expiration of the
collective bargaining agreement.” However, the Respondent asserts that it withdrew
recognition lawfully, based on evidence it had received which proved that a majority of 30
bargaining unit employees no longer wished the Union to represent them.
Specifically, in withdrawing recognition the Respondent relied on a petition, signed by
83 employees1, which it had received on April 21, 2015. The petition began as follows:
35
Union Decertification Petition
WE, THE UNDERSIGNED, EMPLOYEES OF Johnson Controls,
Florence facility, DO NOT WISH TO CONTINUE TO BE REPRESENTED
BY THE United Auto Workers, LOCAL UNION 509 3066 (Local 509 3066) 40
FOR PURPOSES OF COLLECTIVE BARGAINING OR ANY OTHER
PURPOSE ALLOWED BY LAW. WE UNDERSTAND THIS PETITION
MAY BE USED TO OBTAIN AN ELECTION SUPERVISED BY THE
NATIONAL LABOR RELATIONS BOARD OR TO SUPPORT

1 As noted below, an 84th employee signed the petition before the contract's expiration.
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WITHDRAWAL OF RECOGNITION OF THE UNION.
(Capitalization as in original. The handwritten number "3066" appeared above the lined-out
"509" in both instances.) Below this text were employee signatures and dates.2
5
The same day Respondent received the petition, it sent a letter to the Union. The
letter, addressed to International Representative David Bortz and signed by Larry Boswell, the
Respondent's U.S. Director of Operations, East Region, stated as follows:
On April 21, 2015, Johnson Controls, Inc. received objective evidence that a 10
majority of employees employed at the Florence, South Carolina plant within
the unit defined in 11-RC-6736 no longer desire to be represented by the
UAW. The objective evidence provided to Johnson Controls was an
employee petition signed by a majority of employees. Therefore, effective
upon expiration of the current labor agreement on May 7, 2015, Johnson 15
Controls will no longer recognize the UAW as the legal representative of the
workforce.
We will continue to honor the collective bargaining agreement through the
expiration date. However, our previously scheduled dates for bargaining a 20
successor agreement are canceled.
If you have any questions, feel free to contact me.
International Representative Bortz replied by letter dated April 22, 2015. It stated:25
I am in receipt of your letter dated April 21, 2015. The UAW has not received
a petition or any verifiable evidence that a majority of employees have
expressed not to be represented by our Union.
30
Therefore, the Union demands to return to the bargaining table to negotiate a
successor agreement. You have previously scheduled dates of April 27-30,
2015. We would expect that we resume bargaining on Monday, April 22,
2015.
35
If you have any questions, feel free to contact me.
In an April 24, 2015 reply, the Respondent informed the Union that it would not
provide the Union with its evidence and also declined the Union's request to resume
bargaining. The Union then began an effort to counter the disaffection petition. Some 40
prounion employees began asking other employees to sign authorization cards. The cards

2 The complaint does not allege and the General Counsel does not argue that the Respondent provided any
unlawful assistance in the preparation and circulation of the petition and the record would not support such a
finding. I conclude that the petition constituted objective evidence that, on the respective dates they signed the
petition, the signers did not want the Union to represent them.
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8
included the following language:
I,___________________, authorize the United Auto Workers to represent me
in collective bargaining.
5
Among the employees who signed such cards were seven who previously had signed
the disaffection petition. These seven employees (and the date each signed a Union
authorization card) are Kyle Robinson (May 3, 2015), Harry Lee Jefferson (May 4, 2015),
Martha Rogers (May 8, 2015), John Smith (May 6, 20153), McFadden (May 5, 2015), Johnny
W. Smith (May 5, 2015), and Kenneth Waters (May 5, 2015). Thus, all but Rogers signed 10
authorization cards before the Respondent withdrew recognition the Union.
On May 5, 2015, the Respondent received a second petition with the same wording
quoted above and bearing the signature of one employee. In effect, it added one name to the
existing disaffection petition.15
Also on May 5, the Respondent sent the Union another letter. It stated, in part:
We have not received any evidence from the union or otherwise that the union
continues to have the majority support of the bargaining unit employees. In 20
the absence of such evidence, the Company will withdraw recognition of the
union upon expiration of the contract as previously indicated.
The Company remains willing to meet about other matters through the
expiration of the contract.25
The Union replied that it did enjoy majority support and repeated its request to
negotiate. On May 7, 2015, the Respondent sent the Union a letter stating as follows:
We are in receipt of your May 6, 2015 letter. We have objective evidence of 30
the union's loss of majority support - a petition signed by a majority of the
bargaining unit employees. While we acknowledge the union's request to
meet, we are not willing, as we previously advised in our April 24, 2015 letter,
to share the names of the employees who signed the petition.
35
You indicate that despite the evidence the Company has received from our
employees, the union has evidence it has not lost majority support. However,

3 Smith could not recall exactly when he signed the Union authorization card but the card itself bore the
handwritten date 5–15–15. Although Smith recognized the signature as his own, he testified that the "5–5–15"
in the date box did not look like his handwriting. However, Smith mentioned that he had a "problem seeing."
When he looked at the date on the card, initially he misread it as "5–15–15" rather than "5–5–15." No other
evidence suggests that Smith signed the authorization card on a date other than May 5, 2015. The handwritten
date does not appear markedly different from other writing on the union authorization card. In view of Smith's
vision problem, I do not attach great weight to his testimony that the date did not look like his handwriting. In
the absence of evidence to the contrary, I find that Smith signed the card on May 5, 2015.
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while the employees provided the Company with their evidence, to date the
union has not provided any substantiated evidence supporting its position.
Absent contrary evidence, we must rely upon the evidence in our possession
and proceed as previously indicated.
5
The collective-bargaining agreement expired on May 8, 2015, and the Respondent
withdrew recognition from the Union.
As noted above, the government does not claim that the petition had been tainted by
unfair labor practices. Rather, the General Counsel argues that when the seven employees 10
signed union authorization cards, they effectively removed their names from the disaffection
petition, making it insufficient to support a withdrawal of recognition. If the signatures of
these seven employees are disregarded, then the total number of petition signers falls below
half of the number of employees in the bargaining unit. A disaffection petition signed by less
than half of the bargaining unit does not, by itself, prove that the Union had lost majority 15
support.
Here, timing becomes important. The seven employees did not sign union
authorization cards until early May 2015 so, when the Respondent received the petition on
April 21, no action had called into question the validity of any signatures. Thus, when the 20
Respondent received the petition, it did constitute proof that a majority of bargaining unit
employees did not wish to be represented by the Union. If a collective-bargaining agreement
had not been in effect, the Respondent lawfully could how withdrawn recognition after it
received the petition.
25
However, the existence of a current collective-bargaining agreement barred the
Respondent from withdrawing recognition until that contract expired. Accordingly, the
Respondent did no more than notify the Union of its intent to withdraw recognition.
As noted above, under Levitz, the Respondent must prove a lack of majority support at 30
the time it withdraws recognition, and the opportunity to withdraw recognition would not
come until May 8. Therefore, when the Union received the Respondent's April 21 letter, it
had about 2 weeks before the figurative "game over" buzzer would sound. During that time,
it collected authorization cards signed by a number of bargaining unit employees, including
the seven who had signed the disaffection petition. Only the cards signed by the seven35
petition signers are relevant here because employees who did not sign the disaffection petition
are presumed to support the Union.
The government contends that the Union authorization cards signed by the seven
petition signers invalidated their earlier signatures on the petition, making it insufficient proof 40
that the Union had lost its majority support. Thus, during oral argument, the General
Counsel stated:
Respondent relied solely on an employee disaffection petition purportedly
signed by 83 out of 160 unit employees. Seven of these unit employees who 45
signed the disaffection petition subsequently signed a union authorization card
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prior to May 8th, which precluded Respondent from relying on their signatures
on the petition pursuant to HQM of Bayside, 348 NLRB 758 (2006), and
Fremont Medical Center, 354 NLRB 453 (2009).
To prove that seven of the petition signers had changed their mind, the government 5
introduced into evidence the union authorization cards they had signed. The General
Counsel argues that the authorization cards effectively removed the 7 names from the
disaffection petition, thereby dropping the total number of signers to 76, or less than half of
the 160-employee bargaining unit.
10
The government's case therefore turns on whether signing the union authorization
cards had the effect of nullifying the employees' earlier signatures on the disaffection petition.
All of the cards bore the same straightforward language, quoted above, that the signer
authorized "the United Auto Workers to represent me in collective bargaining." These words
directly contradict the language on the disaffection petition, that the signers "DO NOT WISH 15
TO CONTINUE TO BE REPRESENTED BY THE United Auto Workers."
The authorization cards certainly constitute evidence suggesting that the signers had
changed their minds. See HQM of Bayside, above. However, the testimony of some of the
card signers indicates that they did not understand the significance of signing the 20
authorization card and that they remained opposed to union representation. To what extent
should I consider such testimony, and what weight should I give it?
In deciding how this testimony should be treated, it is helpful to consider exactly what
the General Counsel must prove to establish that Respondent failed and refused to bargain in 25
good faith, in violation of Section 8(a)(5), when it withdrew recognition from the Union.
There is obviously a refusal to bargain - the Respondent admits that it withdrew recognition
from the Union - so the inquiry necessarily focuses either on the existence of a duty to bargain
or on the Respondent’s good faith. Whether or not a duty to bargain existed depends on an
objective fact, namely, that a majority of employees continued to support the Union. 30
Whether or not the Respondent acted in good faith presents a subjective question relating to
the Respondent’s state of mind.
Before Levitz, the Board applied a subjective test.4 The lawfulness of the withdrawal
of recognition did not turn on whether a majority of bargaining unit employees wanted union 35
representation but rather depended on the employer's state of mind. The Levitz decision
changed that standard. Thus, in Heritage Container, Inc., 334 NLRB 455 (2001), the Board
explained:
In Levitz, 333 NLRB No. 105 (2001). . .the Board overruled Celanese Corp., 40
95 NLRB 664 (1951), and its progeny insofar as they permitted an employer to
withdraw recognition from an incumbent union on the basis of a good-faith

4 This discussion assumes that no circumstance, such as a current collective-bargaining agreement) barred a
withdrawal of recognition, and also assumes that the employer had not committed unfair labor practices which
prompted or contributed to the employees' disaffection.
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doubt of the union's continued majority status. The Levitz Board held that "an
employer may unilaterally withdraw recognition from an incumbent union only
where the union has actually lost the support of the majority of the bargaining
unit employees."
5
334 NLRB 455, citing Levitz Furniture Co., 333 NLRB at 717. A cursory reading of the
Levitz decision might leave the impression that the lawfulness of the withdrawal of
recognition depends on an actual fact external to the employer's decision-making process.
Thus, the decision stated that "unless an employer has proof that the union has actually lost
majority support, there is simply no reason for it to withdraw recognition unilaterally." 10
Levitz Furniture Co., 333 NLRB at 725. The Board also stated:
[W]e hold that an employer may rebut the continuing presumption of an
incumbent union's majority status, and unilaterally withdraw recognition, only
on a showing that the union has, in fact, lost the support of a majority of the 15
employees in the bargaining unit.
Id. At first glance, these quoted passages might seem to suggest that the lawfulness of the
withdrawal of recognition turns solely on an objective, ascertainable fact external to the
employer's decision-making process: Whether or not the Union enjoyed majority support at 20
the time the employer withdrew recognition. However, the actual analysis is more
complicated.
If the existence or nonexistence of majority support were the sole deciding factor then,
logically the employer would be allowed to present all relevant evidence on this point, 25
regardless of when it obtained the information, that is, whether it obtained the information
before or after the withdrawal of recognition. Under such a totally objective standard, the
employer’s knowledge at the time it withdrew recognition would not matter but only the
objective fact that the union had lost majority support. However, under Levitz, the
lawfulness does not turn on the objective fact alone but rather on whether the employer can 30
prove it. Moreover, the Board will only allow the employer to base this proof on information
the employer actually relied upon when it decided to withdraw recognition. See, e.g.,
Highlands Regional Medical Center, 347 NLRB 1404 (2006).
Thus, the Levitz decision provides a framework for deciding both the existence of a 35
bargaining duty and the good faith of the employer. As to the existence of a bargaining duty,
Levitz presumes that an incumbent union continues to enjoy majority support but allows the
employer to rebut that presumption. To address the subjective question, an employer’s good
faith in withdrawing recognition, the Board limits the evidence an employer can use to rebut
the presumption of an incumbent union’s continuing majority status: The employer may 40
only use evidence it actually possessed and considered when it made the decision to withdraw
recognition. If such evidence does not rebut the presumption, then the employer’s decision
to withdraw recognition could not have been in good faith.
The Levitz framework thus provides a way to decide the two intertwined issues - the 45
existence of a bargaining duty and the employer’s good faith - at the same time. The unusual
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facts of this case, however, complicate the use of this framework. The disaffection petition,
on its face, carried the Respondent’s burden of rebutting the presumption that the incumbent
Union continued to enjoy majority support. When the government introduced the Union
authorization cards, it was attacking the sufficiency of the objective evidence which
Respondent relied upon, but doing so with evidence the Respondent had not possessed.5
In other words, the union authorization card evidence relates to the objective question,
whether a bargaining duty still existed, rather than to the subjective question of whether the
Respondent acted in good faith when it withdrew recognition. Thus, there appears to be an
asymmetry: The Board only allows the Respondent to prove the objective fact - the Union’s 10
loss of majority support - using information the Respondent actually had possessed, but it
permits the General Counsel to challenge that proof with evidence the Respondent had not
possessed.
For reasons discussed above, the government’s Union authorization card evidence 15
does not call into question the Respondent’s subjective good faith because Respondent had no
reason to doubt that the signatures on the disaffection petition reflected the signers’ rejection
of Union representation. Based on the record, I find that Respondent acted in good faith
when it relied on the disaffection petition because it did not know about employees signing
union authorization cards and reasonably could not have known; the Union did not provide 20
this information.
The General Counsel’s evidence that certain petition signers later signed Union
authorization cards can prove, at most, that Respondent made a mistake in relying on the
disaffection petition. But whether Respondent actually made such a mistake depends on the 25
intent of the employees when they signed the union cards. By introducing the union
authorization cards and by calling many of the signers as witnesses, the government has
opened the door for cross-examination concerning their intent. Fairness requires a careful
consideration of this testimony.
30
Moreover, it is important that this proceeding do justice and neither play nor create the
appearance of playing “gotcha.” Regardless of whether the Union had any legal duty to
inform the Respondent of the authorization cards, its silence about them left the Respondent
with no reason to doubt the validity of the signatures on the disaffection petition.
35
The Union clearly could have furnished this information before the Respondent made
the decision to withdraw recognition and the information might well have affected that
decision. Thus, 2 days before it withdrew recognition, the Respondent's May 5, 2015 letter
to the Union stated:
40
We have not received any evidence from the union or otherwise that the union
continues to have the majority support of the bargaining unit employees. In
the absence of such evidence, the Company will withdraw recognition of the
union upon expiration of the contract as previously indicated.
45
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These words clearly imply that Respondent remained open to considering evidence
that contradicted the disaffection petition and that such evidence might change its decision to
withdraw recognition. When it received this letter on May 5, the Union did have such
evidence, the authorization cards, but did not tell the Respondent.
5
Instead, the Union waited until the Respondent withdrew recognition on May 8 and
then, on that same date, filed the unfair labor practice charge in this case. The government
then prosecuted the Respondent for taking an action which appeared to be lawful based on the
information Respondent possessed, and only appeared unlawful in light of the information
which the Union had withheld.10
Certainly, it is well established that an employer "acts at its peril" when it chooses to
withdraw recognition rather than petitioning for the Board to conduct an RM election.
However, I do not believe that the Board intends this principle to be extended so far that it
smiles on "gotcha." 15
Ultimately, though, the most important interest to be protected here is the employees'
right to be represented by representatives of their own choosing or to refrain from having such
representation. If a majority of employees did support the Union at the time Respondent
withdrew recognition, the harm must be undone. To determine whether the petition signers 20
who later signed union authorization cards had changed their minds, I will weigh their
testimony.
Employee Harry Lee Jefferson testified that he received the Union authorization card
at the end of a 12-hour shift and "really didn't know really exactly what it was." Jefferson's 25
testimony during cross-examination included the following:
Q. On May 8, did you support decertifying the Union?
A. Yes.
30
Like Jefferson, employee John A. Smith signed the disaffection petition and then later
signed a union authorization card. During cross-examination, after acknowledging that he
had signed the disaffection petition, Smith testified as follows:
Q, Did you understand that the Company would rely upon that 35
[petition] and withdraw in recognition?
A. Yes, sir.
Q. On May 8th when the Company withdrew recognition, did you
still intend for the Company to rely upon that?40
A. Yes, sir.
Another employee named John Smith (and referred to as "Johnny Smith") also signed
the disaffection petition and later signed a union authorization card. He testified that, when
the Respondent withdrew recognition from the Union, he supported that action 45
notwithstanding that he had signed a union authorization card.
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Employee Morris McFadden signed the disaffection petition and then later signed a
union authorization card. From McFadden's testimony on cross-examination, I conclude that
he did not support the Union when he signed the disaffection petition and did not change his
mind later. Rather He signed the Union authorization card simply to "go along" and avoid 5
conflict with other workers. On cross-examination, McFadden testified, in part, as follows:
Q. Okay You never intended to back out of your signature to
decertify the Union, did you?
A. No, sir10
Q. And on May 8th, when the Company withdrew recognition, you
supported the Company taking that action?
A. Yes, sir.
15
Based upon my observations of the witnesses during the hearing, I conclude that Harry
Lee Jefferson, John A. Smith, Johnny Smith, and Morris McFadden gave reliable testimony.
The record affords no reason to doubt Jefferson's testimony that he received the Union
authorization card at the end of a 12-hour shift and "didn't know really exactly what it was."
Crediting his testimony, I conclude that Jefferson did not understand that signing the card 20
could nullify his signature on the disaffection petition. Further, I find that Jefferson
continued to oppose representation by the Union at the time Respondent withdrew
recognition.
Crediting Morris McFadden's testimony, I find that when he signed the Union 25
authorization, he did not intend to rescind signature on the disaffection petition. Similarly,
based on the credited testimony of John A. Smith and Johnny Smith, I find that they did not
intend to negate their signatures on the disaffection petition. Further, I conclude that
Jefferson, McFadden, and the two Smiths remained opposed to union representation at the
time Respondent withdrew recognition.30
However, I do not find that another employee, Kyle Robinson, remained opposed to
union representation at the time Respondent withdrew recognition. Robinson had signed the
deauthorization petition and later signed a union authorization card. Based upon my
demeanor observations, I credit Robinson's testimony, but that testimony does not establish 35
that he remained opposed to Union representation after he signed the union authorization
card. Therefore, I conclude that Robinson's signature on the union authorization card
resulted from and reflected a change in his attitude about union representation.
Another employee, Kenneth Waters, signed the disaffection petition but later signed a 40
union authorization card. Waters did not testify. In the absence of evidence that Waters
continued to oppose union representation after signing the union authorization card, I
conclude that Waters had changed his position on the issue of union representation.
In sum, I find that Waters and Robinson changed from being against union 45
representation to supporting it. Therefore, their signatures on the disaffection petition cannot
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be counted in determining whether the Union still enjoyed majority support.
Employee Martha Rogers signed a union authorization card on May 8, which was after
the Respondent withdrew recognition from the Union. Therefore, her signature on the
disaffection petition remained in effect at the time recognition was withdrawn and will be 5
counted in determining whether a majority of bargaining unit employees then wanted Union
representation.
For reasons discussed above, I find that employees Jefferson, McFadden, John A.
Smith, and Johnny Smith continued to oppose union representation notwithstanding that they 10
signed union authorization cards. Therefore, their signatures on the disaffection petition
should be counted.
The total number of signatures on the disaffection petition increased to 84 on May 5,
2015, when the Respondent received a page bearing one additional signature. However, I 15
have found that Waters and Robinson changed from opponents to supporters of union
representation. Because their names cannot be counted, I conclude that the disaffection
petition constitutes proof that, at the time Respondent withdrew recognition, 82 of the 160
bargaining unit employees opposed representation by the Union.
20
Because a majority of bargaining unit employees did not want to be represented by the
Union, the Respondent lawfully withdrew recognition.5 Therefore, I recommend that the
Board dismiss the complaint in its entirety.
Conclusions of Law25
1. The Respondent, Johnson Controls, Inc., is, and at all material times has been,
an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act.
2. The International Union, United Automobile, Aerospace and Agricultural 30
Implement Workers of America, AFL-CIO and its affiliated Local Union No. 3066, are, and
have been at all material times, labor organizations within the meaning of Section 2(5) of the
Act.
3. The Respondent did not violate the Act in any manner alleged in the 35
complaint.
On these findings of fact and conclusions of law and on the entire record in this case, I
issue the following recommended6

5 In view of this conclusion, based on the validity of 82 signatures on the disaffection petition, it is not
necessary to consider Respondent’s argument that it possessed and relied upon other information, consisting of
oral statements by employees, when it made the decision to withdraw recognition.
6 If no exceptions are filed as provided by Section 102.46 of the Board's Rules and Regulations, these
findings, conclusions, and recommended Order shall, as provided in Section 102.48 of the Rules, be adopted by
the Board, and all objections to them shall be deemed waived for all purposes.
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ORDER
The complaint is dismissed.
5
Dated, Washington, D.C. February 16, 2016
10